Citation: R. v. Bakker Date: 19990210 1999 BCCA 0084 Docket: CA020476 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: REGINA APPELLANT AND: MARTIN OMKE BAKKER RESPONDENT Before: The Honourable Mr. Justice Goldie The Honourable Madam Justice Ryan The Honourable Mr. Justice Mackenzie Ravi R. Hira, Q.C. Counsel for the Appellant George J. Wool Counsel for the Respondent Place and Date of Hearing Vancouver, British Columbia November 23, 1998 Place and Date of Judgment Vancouver, British Columbia February 10, 1999 Written Reasons by: The Honourable Mr. Justice Goldie Concurred in by: The Honourable Mr. Justice Mackenzie Concurring Reasons by: The Honourable Madam Justice Ryan Reasons for Judgment of the Honourable Mr. Justice Goldie: [1] On 16 May 1995, Mr. Justice Paris dismissed the Crown's application under Part XXIV of the Criminal Code of Canada for an order that the respondent be found to be a dangerous offender liable to an indeterminate custodial sentence. We dismissed the appeal from this application with reasons to follow. These are my reasons for concurring in this result. [2] On 19 August 1994 after a 54-day trial the respondent was found guilty by a jury on 23 counts charging him with a variety of sexual offences. Acting under the provisions of Part XXIV of the Criminal Code Crown counsel applied on 15 November 1994 for an order that Mr. Justice Paris, the trial judge, find the respondent to be a dangerous offender and thereupon impose an indeterminate sentence on him. The appendix to these reasons sets out the counts on which the respondent was found guilty. [3] The application came on before Mr. Justice Paris on 23 January 1995. After a lengthy hearing he dismissed the application and on 16 May 1995 imposed a combination of concurrent and consecutive sentences totalling eight years. On charges of failing to appear and breach of recognizance the respondent was convicted and sentenced to a one year term on each, concurrent to one another, but consecutive to the sexual assault convictions. This added one year to the totality of eight years. At the time of sentencing the respondent had been in custody since February, 1991. [4] A notice of appeal under s. 759 of the Code was filed by the Attorney General on 14 June 1995. By virtue of s-s. (2) of s. 759 the Attorney General's right of appeal is limited to grounds of law alone. [5] The respondent's appeal against conviction was dismissed by this Court on 28 February 1998. [6] The nature of the offences, which occurred between 1975 and 1991 and involved six victims ranging in age from eight to 15 years at the time of their commission, can be summarized as follows: a) buggery; b) attempted buggery; c) gross indecency; d) three counts of gross indecency, to wit, fellatio; e) four counts of gross indecency, to wit, masturbation; f) four counts of indecent assault; g) six counts of sexual assault; and h) three counts of touching for a sexual purpose. [7] These are all offences upon which the dangerous offender proceeding can be predicated. They are serious personal injury offences as that phrase is defined in s. 752 of the Code. They occurred over a long period of time and one case involved multiple assaults of the same victim. In respect of four victims related to the respondent he was a figure clothed with another source of authority in whom they were doubly justified in placing their trust. All victims suffered psychological injury. [8] The relevant section in Part XXIV as it was at the time the hearing took place in 1995 provided: 753. [688] Where, upon an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) a pattern of repetitive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of his causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour, or (iii) any behaviour by the offender, associated with the offence for which he has been convicted, that is of such a brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint, or (b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses, the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted. ISSUES 1. Whether the trial judge misdirected himself in considering the likelihood of future conduct in finding the respondent was not a dangerous offender. 2. Whether the trial judge erred in his interpretation of s. 753 of the Code. 3. Whether, if the respondent is a dangerous offender, this Court ought to impose an indeterminate sentence or remit the proceeding to the Supreme Court to impose sentence. Issue 1 [9] On behalf of the Crown Mr. Hira, Q.C., contended the trial judge was in error under both s-s. (b) and paragraphs (i) and (ii) of s-s. (a) of s. 753. He agreed that if the trial judge erred under s-s. (b) it was not necessary to consider s-s. (a). Parenthetically I might say here I was not persuaded the evidence in the case at bar could reasonably support the finding required under s-s. (a) of s. 753. [10] The error in the trial judge's analysis is said to occur in the following passage at page 12 of his reasons: To repeat, the crux of the matter on the facts of this case is whether the Crown has proven beyond a reasonable doubt that it is likely that in future the offender will fail to control his sexual impulses and thereby cause injury, pain or other evil to other persons. It seems to me that in this case especially, the extent of that likelihood is best judged by considering the pattern of his previous offences, of course, giving due weight to the assistance afforded by the psychiatric evidence. In that process, it is important to consider whether the same factors, conditions and opportunities for reoffending will exist in the future. [Emphasis added] [11] Mr. Hira contends, and authority supports him, that the required finding under s-s. 753(b) of a "likelihood in ... the future" of harm must be derived from past conduct. [12] In R. v. Currie (1997), 115 C.C.C. (3d) 205 (S.C.C.) the Supreme Court of Canada had before it a Crown appeal from a judgment of the Ontario Court of Appeal allowing the offender's appeal from an indeterminate sentence. Upon the offender's conviction on three counts of sexual assault involving the sexual touching of three young girls on 5 November 1988 the Crown applied under s. 753(b) of the Code. The trial judge took into account a serious record of sexual assaults commencing with a conviction in 1976 on counts of indecent assault, rape, and possession of a weapon followed by a history of deviant sexual activity. The psychiatric opinion he accepted was to the effect the offender was a very dangerous person to society who was not open to treatment and a risk to women and female children. As well, the offender had made damaging post incident admissions while in a mental health centre. [13] The Ontario Court of Appeal allowed the offender's appeal, primarily, it appears, on the failure of the trial judge to give the proper weight to the relatively less serious nature of the predicate offences. (It should be noted that s-s. 759(1) of the Code allows an offender to appeal an indeterminate sentence on any ground of law or mixed law and fact. The issues in the Supreme Court of Canada therefore included the question of whether the indeterminate sentence was reasonably supported by the evidence.) In the course of demonstrating the Court of Appeal erred in finding fault with the trial judge's reasons the Supreme Court closely examined s-s. 753(b). [14] Speaking for the Court the Chief Justice of Canada made it clear a trial judge need not focus on the objective seriousness of a predicate offence in order to conclude a dangerous offender designation was warranted. Of the scheme of s-s. 753(b) he said at 217: [26] Parliament has thus created a standard of preventive detention that measures an accused's present condition according to past behaviour and patterns of conduct. [Emphasis added] [15] We were referred to other authorities to the same effect. I acknowledge that the operation of s. 753 requires two steps or analytical stages. But, as will be seen, I have concluded this does not require a trial judge to treat these stages in isolation. [16] The trial judge in the case at bar expressed the law correctly in the first sentence of the extract of his reasons quoted in paragraph [10] above. However, the concern is that the second and emphasized sentence reveals a possible impermissible modification of the statutory standard of past behaviour and patterns of conduct. [17] Mr. Hira says this occurred in three instances and constituted misdirection, an error of law. He contends that in the result a determinate sentence was imposed which ran counter to the trial judge's findings that the respondent was an untreatable paedophile whose behaviour was deeply entrenched. These instances were, in Mr. Hira's submission, the following: (a) The Offender will not have the opportunity to re-offend against children; (b) The Offender would not be able to use his position of authority to gain access to children; (c) There was a possibility that aging, or "burn- out", reduced the risk of re-offending in the future. [18] Of these, item (c) should more properly be referred to simply as "age", as the respondent was in his 65th year at the time of sentencing. As such, it and the other two items are matters which Mr. Hira conceded the trial judge could take into consideration in deciding whether, as a dangerous offender, the protection of the public could be better served with a determinate rather than indeterminate sentence. But, as he forcefully contends, these considerations have no place in determining whether the respondent is a dangerous offender. [19] We were referred to R. v. Moore (1985) 16 C.C.C. (3d) 328 (Ont. C.A.) where it was held the trial judge erred in finding he had a discretion not to find the respondent a dangerous offender even when the statutory criteria, namely, a threat to the life, safety or physical well being of other persons, had been met. [20] The trial judge in the case at bar did not purport to exercise a discretion in concluding the respondent was not a dangerous offender. [21] I concluded the trial judge did not make the error alleged. Instead of treating the two step process called for under s-s. 753(b) in watertight compartments he treated it in a manner which simply followed the structure of s. 753. [22] Section 753 consists of one long sentence. The introductory clause defines when and under what circumstance the section may be invoked. Subsections (a) and (b), each self contained, set out elements. If these, in either, are established to the trial judge's satisfaction he or she is authorized in the last clause of the section to impose the status of dangerous offender on the convicted person. The same last clause confers on the trial judge a discretion in respect of the sentence. [23] Section 753 provides a sentencing direction which in my view the experienced trial judge applied in a straightforward sequential manner as appears from his introductory observation at page 2 of his reasons: Section 753(b) is the provision in Part 24 of the Code aimed specifically at sexual offenders. To demonstrate that the offender is a dangerous offender pursuant to that subsection, the Crown must prove beyond a reasonable doubt that, one, he has been convicted of a serious personal injury offence as defined by Section 752 of the Code. Two, he has by his past conduct shown a failure to control his sexual impulses. Three, by his past conduct he has shown a likelihood of failure in the future to control his sexual impulses. Four, failure in the future to control his sexual impulses will cause injury, pain, or other evil to other persons. Should the Crown succeed in that regard, the court may then impose an indeterminate sentence, that is, it may exercise its discretion to do so or not do so. [24] Then followed a passage in which the following sentence appears: . . . But in any event, the crux of this case on its facts is whether the Crown has proven beyond a reasonable doubt that there is a likelihood that in the future the offender will fail to control his sexual impulses. [25] The trial judge here correctly states the burden of proof on the Crown. See: R. v. Currie, supra, at 216. [26] The dangerous offender hearing occupied some 20 days. Most of the evidence of the victims had been heard during the 54 day trial of the predicate offences. There was of course new evidence in the form of victim impact statements and, most importantly, in the evidence of three psychiatrists, two of whom testified at the sentencing hearing. Seven pages of the trial judge's 16 page sentencing judgment are devoted to the psychiatric evidence. [27] Section 755 of Part XXIV required the evidence of not less than two psychiatrists be heard at the dangerous offender hearing; one nominated by the offender and one by the Crown. The respondent refused to exercise his right of nomination. The trial judge appointed a well qualified and highly experienced forensic psychiatrist on his behalf. The respondent refused to speak to the two appointed psychiatrists. He was remanded in custody for examination under s. 756 of the Code. There he was observed by, amongst others, the third psychiatrist. While somewhat more forthcoming in general terms with her he did not admit guilt or exhibit remorse. It should be noted a remand for assessment now requires an order of the court. [28] While it is true an accused person cannot be compelled to testify on sentencing neither can he or she obtain any advantage from silence. The psychiatrists acknowledged the respondent's attitude made their task more difficult. [29] The trial judge's conclusion with respect to whether the respondent was a dangerous offender rested on the evidence at trial as well as that tendered at the sentencing hearing and was expressed in these terms at page 13 of his reasons:: Having considered all the evidence I heard both at trial and during the sentencing proceedings, and bearing in mind the factors I have just reviewed, I find I am not satisfied beyond a reasonable doubt that it is likely that the offender will reoffend in the future. [30] It is appropriate to turn now to the evidence upon which Mr. Hira relies in contending the trial judge looked to the future. [31] There were two matters which were existing facts at the time of sentencing in May 1995: the appellant had ceased to hold the offices of Assistant Deputy Regional Director of Court Services and a District Registrar of the Supreme Court of British Columbia as of February 1991 and he was within four months of his 65th birthday. [32] As to the first, there was evidence from some of the victims the appellant had used these offices in recruiting and impressing prospective victims; in coercing acquiescence in sexual activity, and in threatening retaliation if complaint was made of the activity. [33] I am not persuaded the trial judge's reference to this fact and its future consequence constituted reversible error. [34] The example of a man whose behaviour merited a finding he was a dangerous offender but who before sentence was so injured as to render him incapable of re-offending was put to Mr. Hira. He contended such a person should be declared a dangerous offender before the trial judge exercised his discretion in refusing to impose an indeterminate sentence. This would designate the person as a dangerous offender when the evidentiary basis for the likelihood of re-offending has been removed. The possibility for prejudice arising from such a designation would persist when any reason for such persistence had disappeared. [35] In the case at bar, the relationship between the respondent's misuse of the ostensible authority of his offices and the termination of these offices were relevant factors in determining the risk of re-offending. So too, although to a lesser extent, is the relevance of age at the likely termination of a determinate sentence. [36] Mr. Hira directed our attention to the following observation by the trial judge at page 13 of his reasons: I also note again that I am not satisfied that he is the compulsive or out of control worst type of pedophile that have come before the courts. That may make his conduct in that regard seem morally more offensive, but I think it makes him less dangerous. Mr. Hira contended this indicated a failure to understand that every sexual assault falls within the category of "serious personal injury offence". In my view, the observation was relevant to the issue of whether the sentence should be determinate or non-determinate. [37] I think the phrase "out of control" must refer to the kind of past behaviour found in R. v. Currie, supra. There the offender had engaged in flagrant and obsessive behaviour while under surveillance and when apprehended said that he could not help it. In the case at bar, one of the psychiatrists said of the respondent: . . . I am assuming he will receive a lengthy sentence, such that by the time he leaves prison, even if sentenced in a conventional manner, he will be quite advanced in age. Although advanced age does not eliminate potential for reoffence, it certainly reduces the risk considerably, but unfortunately we cannot make an accurate prediction as to the extent of this reduction. The final issue to consider is the extent of supervision in the community if and when he may be released from prison. This is the kind of man who you would obviously wish to supervise and would likely be able to refrain from offending under close supervision. The reasons for this primarily focus on excluding his abilities to assault children from his position of trust. He would obviously need to be prevented from associating with people who in turn have younger children, and in particular from acting as a parent-surrogate as he has previously done. Taking these non-treatment factors into consideration, it is my opinion that Mr. Bakker's relative risks to offend following a lengthy sentencing, elimination of any position of trust and adequate supervision in the community would be relatively low although not totally eliminated. [38] The trial judge examined the risk of re-offending in light of past behaviour but with the knowledge of present facts as interpreted by skilled professionals. In my view the Crown failed to demonstrate that in so doing he misdirected himself in law. Issue 2 [39] Mr. Hira contended that since the trial judge found on the evidence that (a) the respondent was a paedophile; (b) he was untreatable; (c) his paedophilic behaviour was deeply entrenched; he was bound to find the respondent a dangerous offender. This involves consideration of the finding required in determining whether or not a person is a dangerous offender. [40] In R. v. Currie, supra, the Court, in upholding the trial judge, said at 214 a finding that a convicted person is a dangerous offender is a finding of fact, frequently based on the competing credibility of experts. As long as it is reasonable, it is a finding which should not be lightly overturned. [41] Mr. Hira relied upon the judgment of the Ontario Court of Appeal in R. v. Poutsoungas (1989), 49 C.C.C. (3d) 388. In that case the accused, found to be a dangerous offender, was nevertheless sentenced to a fixed term as the trial judge considered the offender could probably be cured within the term of the sentence he imposed. The finding the convicted person was a dangerous offender was not in issue. [42] In my view, this case has no application to the case at bar. The Ontario Court of Appeal declined to express a general view on the scope of the discretion conferred by s. 688 of the Code, the predecessor to s. 753. Its judgment was grounded on the absence of any evidence supporting the trial judge's conclusion. Where this happens the result is an error of law. In the case at bar the trial judge decided on the whole of evidence that he was not convinced beyond a reasonable doubt that the respondent would not offend. Nothing was demonstrated to us that would permit me to substitute my opinion for his. See: R. v. Currie, supra. Issue 3 [43] Mr. Hira urged us to treat the sentencing regime in s. 753 as unlike any other. That may be so but in my opinion the trial judge's discretion under the final clause of s. 753 makes it unnecessary to provide a definitive answer to this submission except to this extent: beyond the adoption of statutory criteria in determining whether a person is a dangerous offender I do not see in s. 753 an intention on the part of Parliament to abandon consideration of all the principles of sentencing. It would have been easy to say upon a person being found to be a dangerous offender he or she shall thereupon be sentenced to an indeterminate term of imprisonment. This would leave the review of the offender's progress or lack of it wholly in the hands of the National Parole Board under the review provisions found in s. 761 of the Code. Parliament did not do this: it empowered the sentencing judge to exercise a discretion. In the case at bar I concluded that discretion was judicially exercised. [44] Subsection (4) of s. 759 permits this Court, if it allows a Crown appeal, to set aside the sentence imposed below and to substitute an indeterminate sentence. In the alternative, a new sentencing hearing could be ordered. [45] We rejected the alternative of allowing the appeal and substituting an indeterminate sentence as we concluded the lengthy determinate sentence that was imposed fully reconciled the principles of protection of the public and retribution with the respondent's circumstances. That being so, we saw no utility in ordering a new sentencing hearing. [46] The foregoing constitute my reasons for concurring in the dismissal of this appeal on behalf of the Attorney General. "The Honourable Mr. Justice Goldie" I AGREE: "The Honourable Mr. Justice Mackenzie" APPENDIX Count 5: Martin Omke BAKKER also known as Mark BAKKER, a male person, between the 30th day of June, 1975 and the lst day of September, 1975, at Surrey in the Province of British Columbia, did indecently assault J.L.N., a male child, contrary to Section 156 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 6: Martin Omke BAKKER also known as Mark BAKKER, between the 30th day of June, 1975 and the lst day of September, 1975, at Surrey in the Province of British Columbia, did commit an act of gross indecency with J.L.N., a male child, to wit fellatio, contrary to Section 157 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 7: Martin Omke BAKKER also known as Mark BAKKER, between the 30th day of June, 1975 and the lst day of September, 1975, at Surrey in the Province of British Columbia, did commit an act of gross indecency with J.L.N., a male child to wit masturbation, contrary to Section 157 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 8: Martin Omke BAKKER also known as Mark BAKKER, between the 30th day of June, 1975 and the 3lst day of December, 1975, at or near Smithers, Vanderhoof and elsewhere in the Province of British Columbia, did commit buggery with J.L.N., a male child, contrary to Section 155 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 10: Martin Omke BAKKER also known as Mark BAKKER, between the 30th day of June, 1975 and the 3lst day of December, 1975, at or near Smithers, Vanderhoof and elsewhere in the Province of British Columbia, did indecently assault J.L.N., a male child, contrary to Section 156 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 11: Martin Omke BAKKER also known as Mark BAKKER, between the 30th day of June, 1975 and the 3lst day of December, 1975, at or near Smithers, Vanderhoof and elsewhere in the Province of British Columbia, did commit an act of gross indecency with J.L.N., a male child, to wit fellatio, contrary to Section 157 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 12: Martin Omke BAKKER also known as Mark BAKKER, between the 30th day of June, 1975 and the 3lst day of December, 1975, at or near Smithers, Vanderhoof and elsewhere in the Province of British Columbia, did commit an act of gross indecency with J.L.N., a male child, to wit masturbation contrary to Section 157 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 14: Martin Omke BAKKER also known as Mark BAKKER, a male person, between the lst day of January, 1975 and the 3lst day of December, 1976, at Surrey, in the Province of British Columbia, did assault J.L.N., a male child, with intent to commit buggery, contrary to Section 156 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 15: Martin Omke BAKKER also known as Mark BAKKER, a male person, between the lst day of January, 1975 and the 3lst day of December, 1976, at Surrey, in the Province of British Columbia, did indecently assault J.L.N., a male child, contrary to Section 156 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 16: Martin Omke BAKKER also known as Mark BAKKER, between the lst day of January, 1975 and the 3lst day of December, 1976, at Surrey, in the Province of British Columbia, did commit an act of gross indecency with J.L.N., a male child, to wit fellatio, contrary to Section 157 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 17: Martin Omke BAKKER also known as Mark BAKKER, between the lst day of January, 1975 and the 3lst day of December, 1976, at Surrey, in the Province of British Columbia, did commit an act of gross indecency with J.L.N., a male child, to wit masturbation, contrary to Section 157 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 18: Martin Omke BAKKER also known as Mark BAKKER, between the 3lst day of December, 1980 and the lst day of January, 1982, at or near New Westminster, in the Province of British Columbia, did indecently assault J.M., a female person, contrary to Section 149 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 19: Martin Omke BAKKER also known as Mark BAKKER, between the 3lst day of December, 1980 and the lst day of January, 1982, at or near New Westminster, in the Province of British Columbia, did commit an act of gross indecency with J.M., a female person, to wit masturbation, contrary to Section 157 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 21: Martin Omke BAKKER also known as Mark BAKKER, between the 3rd day of January, 1983 and the 13th day of December, 1988, at or near Chilliwack and New Westminster, and at Vancouver, in the Province of British Columbia, did commit sexual assault on D.R.M., contrary to Section 246.1 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 22: Martin Omke BAKKER also known as Mark BAKKER, between the 1st day of January, 1982 and the lst of January, 1988, at or near Chilliwack and New Westminster, and at Vancouver, in the Province of British Columbia, did commit gross indecency with D.R.M., contrary to Section 157 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 23: Martin Omke BAKKER also known as Mark BAKKER, between the 11th day of December, 1988, and the lst of January, 1990, at or near Chilliwack and Vancouver, in the Province of British Columbia, did commit sexual assault on D.R.M., contrary to Section 271 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 24: Martin Omke BAKKER also known as Mark BAKKER, between the 11th day of December, 1988, and the lst of January, 1990, at or near Chilliwack and Vancouver, in the Province of British Columbia, being in a position of trust or authority towards D.R.M., a young person, did for a sexual purpose touch D.R.M. with his hand, contrary to Section 153 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 25: Martin Omke BAKKER also known as Mark BAKKER, between the 11th day of December, 1988, and the lst of January, 1990, at or near Chilliwack and Vancouver, in the Province of British Columbia, being in a position of trust or authority towards D.R.M., a young person, did for a sexual purpose invite D.R.M. to touch with his hand, the body of Martin Omke BAKKER also known as Mark BAKKER, contrary to Section 153 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 26: Martin Omke BAKKER also known as Mark BAKKER, between the 30th day of June, 1986, and the lst of September, 1986, at or near Chilliwack, in the Province of British Columbia, did commit a sexual assault on D.M., contrary to Section 246.1 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 27: Martin Omke BAKKER also known as Mark BAKKER, on or about the 18th day of January, 1991, at or near Vancouver, in the Province of British Columbia, did commit sexual assault on P.O., contrary to Section 271 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 28: Martin Omke BAKKER also known as Mark BAKKER, on or about the 18th day of January, 1991, between Chilliwack and Vancouver, in the Province of British Columbia, did commit sexual assault on P.O., contrary to Section 271 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 31: Martin Omke BAKKER also known as Mark BAKKER, between the lst day of January, 1991, and the 31st day of January, 1991, at or near Chilliwack, in the Province of British Columbia, did commit sexual assault on D.M., contrary to Section 271 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Count 32: Martin Omke BAKKER also known as Mark BAKKER, between the lst day of January, 1991, and the 31st day of January, 1991, at or near Chilliwack, in the Province of British Columbia, being in a position of trust or authority towards D.M., a young person, did for a sexual purpose touch D.M., a young person, with his hand, contrary to Section 153 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. Reasons for Judgment of the Honourable Madam Justice Ryan: [47] I agree with my colleagues that this appeal must be dismissed. But my understanding of the dangerous offender legislation in force at the time that Mr. Bakker was sentenced differs from that of my colleagues. Since the legislation was subsequently amended these reasons will likely affect only the respondent's case. For that reason I will keep my reasons brief. [48] I agree with counsel for the Crown, Mr. Hira, that s. 753 of the Criminal Code sets out a two-step process. At the first stage the trial judge must determine whether the offender meets the dangerous offender criteria. If so, the accused must be declared to be a dangerous offender. If the offender is declared to be a dangerous offender the trial judge must next decide whether an indeterminate sentence ought to be imposed. [49] Mr. Hira submitted that the trial judge fell into error in this case by conflating the two steps. Mr. Hira submitted that in determining dangerousness the trial judge ought to have limited himself to an analysis of Mr. Bakker's past behaviour. He ought not to have considered Mr. Bakker's likely access to children on his release nor the effects of his advancing age. [50] There is considerable support for this submission in the case law. In R. v. Carleton (1981), 69 C.C.C. (2d) 1 (Alta. C.A.) at p. 8, McGillvray C.J.A. said this: Turning, then, to this case, one issue is whether in finding an offender to be a dangerous offender, a trial judge may look at the probability of cure in the future, or whether the probability of cure is something which goes only to the exercise of the discretion as to the appropriate sentence. For the reasons mentioned, I am of the opinion that treatment or cure is not relevant in the question of whether one is a dangerous offender. That is a determination to be made on past conduct. [Emphasis added] [51] The Supreme Court of Canada affirmed the majority decision in Carleton, [1983] 2 S.C.R. 58, stating: We are all of the view that the appeal fails and must be dismissed. We find no error in the judgment of the majority in the Court of Appeal of Alberta. [52] In R. v. Jack, [1998] B.C.J. No. 458 at para. 30, Esson J.A. for the court, approved the passage from Carleton I have reproduced at paragraph 50. [53] In R. v. Currie (1997), 115 C.C.C. (3d) 205 (S.C.C.) Lamer C.J.C. said at para. 26: Parliament has thus created a standard of preventive detention that measures an accused's present condition according to past behaviour and patterns of conduct. [Emphasis added] [54] Our attention was drawn to other cases which have considered factors beyond past conduct in determining dangerousness. In R. v. J.H.B. (1995), 101 C.C.C. (3d) 1 (N.S.C.A.), the court considered the offender's diary entries. In R. v. Oliver (1997), 114 C.C.C. (3d) 50 (Alta. C.A.), the court examined the offender's statements to a psychiatrist. In R. v. George (1998), 126 C.C.C. (3d) 384, this Court examined the past conduct of the offender against the backdrop of the offender's aboriginal status and social situation. The Code itself, by virtue of s. 755, requires a consideration of psychiatric evidence. Section 757 allows the Crown to introduce evidence of character and repute with respect to whether or not the offender is a dangerous offender. [55] In my view these cases and Code sections do not detract from the notion that past conduct is the measure of the offender's dangerousness. These cases stand for the proposition that past conduct need not be assessed in a vacuum. Such matters as psychiatric evidence, social background, and offenders' statements may give context to, and assist the trial judge in assessing, past conduct. But it is past conduct, not future events, which determines dangerousness. [56] In the case at bar the trial judge considered what effect future events might have in modifying Mr. Bakker's present condition. In my view this was an error. [57] The trial judge found that the offender was an untreatable paedophile whose behaviour was clearly entrenched. In my view he ought to have concluded that Mr. Bakker was a dangerous offender. [58] Had he done so the trial judge would then have been obliged to consider whether he ought to impose an indeterminate sentence. It is at this stage of the proceedings that he was entitled to consider the effects of aging and the fact that he would not longer be in a position to have easy access to children. [59] I am not persuaded that had he approached his task in the proper fashion the trial judge would have reached a different conclusion. In other words, this error of law could not affect the outcome. I am not persuaded that the imposition of a determinate sentence was unreasonable. [60] I agree with my colleagues that this appeal should be dismissed. "The Honourable Madam Justice Ryan"